By Stan Panikowski, Andrew N. Stein, and Brian Biggs

B&B Hardware, Inc. v. Hargis Industries, Inc.


Holding: A Trademark Trial and Appeal Board (TTAB) ruling refusing registration on likelihood of confusion grounds can have preclusive effect on a district court trademark infringement case when the elements of issue preclusion are met.

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By Ann Ford and Ashley Green

The United States Supreme Court ruled today that a Trademark Trial and Appeal Board (“TTAB”) ruling on likelihood of confusion can preclude later litigation on the same issue in federal courts.  This highly anticipated and long-awaited decision, penned by Justice Alito, ends nearly two decades of litigation on whether the TTAB’s refusal to register an applied-for mark on the basis that it is likely to be confused with a prior registered mark is enough to preclude a federal court from coming to a different conclusion in the infringement context.  The court said it is, so long as the ordinary elements of issue preclusion are met.

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Reposted from Intellectual Property and Technology News

By Brian Biggs, Stan Panikowski, and Andrew N. Stein



Patent: Decided: June 3, 2014

Holding: In a unanimous (9-0) opinion authored by Justice Ruth Bader Ginsburg, the Court held that the Federal Circuit’s indefiniteness standard bred “lower court confusion” because it “lack[ed] the precision § 112, ¶2” demands.

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Reposted from Intellectual Property and Technology Alert

Shortly after its highly publicized loss before the US Supreme Court, which appeared to doom its over-the-air television Internet streaming business, New York-based Aereo shifted to a new legal strategy which it hopes will save its business from extinction. 

Aereo has asserted in federal district court that it is entitled to a compulsory license to carry over-the-air broadcasts under § 111 of the Copyright Act.  Such a license, which is available to cable systems, could be a complete defense to copyright infringement claims by broadcasters.  Aereo bases its claim on the Supreme Court’s ruling that the Aereo service is “highly similar” to that of a cable system.  

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By Jeremy Elman and Andrew Stein

The United States Supreme Court issued two related opinions earlier today regarding the appropriate standard for awarding attorneys’ fees in patent litigation, Octane Fitness, LLC v. Icon Health & Fitness, Inc., and Highmark Inc. v. Allcare Health Management System, Inc. At issue in Octane was whether the “exceptional case” standard for awarding attorneys’ fees in patent litigation under 35 U.S.C. § 285 was too high, and at issue in Highmark was whether a District Court’s award under § 285 should be subject to deference or reviewed de novo.  Justice Sonia Sotomayor delivered the opinion of the Court in both cases, which was unanimous except for Justice Antonin Scalia disagreeing with three footnotes in Octane.

While the effect of these decisions on reducing patent troll litigation remains to be seen, they could have an immediate impact on the various legislative patent litigation reform proposals being considered in Congress.

The Court’s opinions today lower the standard for awarding attorneys’ fees and reviewing such decisions, overruling the Federal Circuit’s standard from Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378 (2005).

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By Tom Zutic and John Nading

In a 6-2 decision today in Golan, et al. v. Holder, et al., the U.S. Supreme Court upheld U.S. Copyright protection for foreign works which had fallen into the public domain prior to the U.S. joining the Berne Convention for the Protection of Literary and Artistic Works in 1989See Slip Opinion.  Under the Berne Convention, signatories agree to treat authors from fellow signatory countries as they would treat their own.  

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